People v. Mirabal

Decision Date07 December 2000
Citation278 A.D.2d 526,717 N.Y.S.2d 404
CourtNew York Supreme Court — Appellate Division

Mercure, J.P., Crew III, Rose and Lahtinen, JJ., concur.

Mugglin, J.

As a result of these convictions, defendant was sentenced to a determinate term of imprisonment of 12½ years for sodomy in the first degree, a concurrent term of three months on the conviction of sexual abuse in the third degree and a concurrent term of one year for endangering the welfare of a child.

The principal argument of defendant on this appeal is that the evidence presented at trial was legally insufficient to establish beyond a reasonable doubt the element of forcible compulsion required under the charge of sodomy in the first degree, and that the verdict was against the weight of the evidence. "`Forcible compulsion'" is defined as compulsion either by "a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury" (Penal Law § 130.00 [8]). Viewing the evidence in the light most favorable to the People, as we must (see, People v Contes, 60 NY2d 620, 621; People v Nunez, 186 AD2d 317, lv denied 81 NY2d 765), we find the proof insufficient to establish beyond a reasonable doubt that defendant used physical compulsion to engage in deviate sexual intercourse as alleged in the indictment. Here, the prosecution's case consisted of two witnesses, the victim and her friend who observed her before and after the events in question.

With respect to the use of physical force, the victim testified that defendant placed his penis in her mouth and had his hands on the back of her head. The victim further claimed, without detailed elaboration, that she unsuccessfully attempted to stop the act. Although we recognize that corroboration is not necessary, the record does not contain any evidence to support the victim's contention that defendant used physical force to compel her to engage in the sexual act. The defense, on the other hand, presented several witnesses who claimed to have been told by the victim that no physical force was used and that she did not feel threatened in any way. Defendant, although admitting that the sexual act took place, denied the use of any physical force and in fact maintained that the victim initiated and perpetrated the sexual act, without resistance on his part.

We recognize that the trial court's determination and assessment of credibility is accorded great weight and will not be disturbed unless clearly unsupported by the record (see, People v Fernandez, 248 AD2d 801). We conclude that a fair assessment of all of the evidence in the case fails to establish the element of forcible compulsion beyond a reasonable doubt. According to the victim, she voluntarily went to the basement of defendant's premises in the company of defendant and at least four other people. At that time, defendant began to kiss the victim and attempted other...

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4 cases
  • People v. Mack
    • United States
    • New York Supreme Court — Appellate Division
    • September 21, 2010 that she felt threatened, the grand jury was not presented with detailed facts to support the claim ( cf. People v. Mirabal, 278 A.D.2d 526, 527, 717 N.Y.S.2d 404 [2000] ). More to the point, the grand jury heard no evidence from which it could have been inferred that the complainan......
  • People v. Stewart
    • United States
    • New York Supreme Court — Appellate Division
    • February 23, 2012
  • People v. Alford, 12321
    • United States
    • New York Supreme Court — Appellate Division
    • October 25, 2001
    ...element (see, People v Soulia, 263 A.D.2d 869, 872, lv denied 94 N.Y.2d 829; Matter of Dakota EE., supra, at 782; see also, People v Mirabal, 278 A.D.2d 526, 527). Additionally, corroboration is not required for sex offenses such as rape in the third degree where a victim's incapacity to co......
  • People v. Hogabone
    • United States
    • New York Supreme Court — Appellate Division
    • December 7, 2000

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